Guidance for Employers: Returning to Work During the COVID-19 Pandemic

As stay-at-home orders expire across the country, many employers have allowed employees to return to work or have started to compile a plan for bringing employees back to work. When finalizing return-to-work plans, employers should ensure compliance with the Americans with Disabilities Act (ADA) and other U.S. Equal Employment Opportunity Commission (EEOC) laws that help employers provide workplace safety during the on-going COVID-19 pandemic. 

Temperature Checks

Guidance from the EEOC indicates that employers can legally require employees to have a daily temperature check before entering the workplace. This is true so long as the employer does so for all entering employees in the same type of job. The employer can take the employee’s temperature at the workplace with proper precautions or require the employee to perform the temperature check at home and report the results. Employers may keep a log of the daily results, but such information must be kept confidential and stored in an employee’s medical file that is separate from such employee’s personnel file in order to limit access to this confidential medical information in accordance with the ADA. Employers should be aware that some people with COVID-19 do not have a fever and therefore implement other procedures in combination with a temperature check to best protect employees during the pandemic.

Employers may also be required to compensate employees for the time it takes to take their temperature or respond to a health check (described below) under The Fair Labor Standards Act. Employers can mitigate the risk of claims by implementing policies with this compensation issue in mind or take a more risk-adverse approach and decide to compensate employees for all temperature or health checks (including time spent waiting in a temperate or health check line for larger employers).

Health Checks

Employers may also legally ask all employees if they are experiencing symptoms of COVID-19 or if they have the virus for so long as the pandemic continues. This inquiry can occur via e-mail, text message or in-person. The symptoms currently include fever, chills, cough, shortness of breath, or sore throat. Employers should rely on the Center for Disease Control and Prevention (CDC) and other state and local public health authorities to determine which symptoms can be included in their health checks with employees. The employee’s separate medical file should include these confidential statements from employees. However, the EEOC has indicated that employers may disclose the name of an employee to a public health agency when it learns that such employee has COVID-19 without a violation.

Physician’s Note

Employers can also require that employees deliver a note from a physician certifying their fitness for work prior to allowing such employee to return to the workplace under the ADA. However, employers should thoughtfully consider this requirement as physicians and nurse practitioners may be too busy during the pandemic to provide such documentation for employers.

COVID-19 Testing

Under the ADA, employers may administer COVID-19 testing at the workplace before employees are allowed to enter the workplace to determine if they have the virus. This is allowed if employees with the virus will pose a direct threat to the health of other employees and others who enter the workplace. If an employer chooses to administer such testing, employers should ensure the tests are accurate and reliable based on CDC guidance.

Reasonable Accommodations

Employers should be cautious if their employees include those who are disabled or high risk according to CDC and public health official guidance. This is because there may be reasonable accommodations that the employer should offer to protect an individual whose disability puts such employee at greater risk from COVID-19 and who therefore requests such actions to eliminate possible exposure.

Employers should comply with these reasonable accommodation requests and can use low-cost solutions on hand or easily obtained to satisfy these laws. For example, if not already implemented for all employees, accommodations for those who request reduced contact with others due to a disability may include changes to the work environment such as designating one-way aisles, using dividers, tables, or other barriers to ensure minimum distances between clients, customers or co-workers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure, such as supplying disposable protective masks to wear each day or shift.

Infection Control Practices

Based on guidance from the CDC and other medical and public health authorities, employers should also require that employees observe social distancing, regular handwashing and other measures such as wiping down office or cubicle surfaces frequently. Employers can increase cleaning services throughout the office to prevent transmission and keep employees safe.

Employers should note that the EEO laws, including the ADA and Rehabilitation Act, continue to apply during the pandemic, but they do not interfere with or prevent employers from following CDC and other public health authority guidelines or suggestions about steps employers should and can legally take regarding COVID-19. Employers should also remember that guidance from public health authorities is likely to change as the pandemic evolves and therefore employers should continue to follow the most current information on maintaining workplace safety.

Return-to-Work Waivers

Many employers are considering the requirement that each employee sign an agreement that waives their right to bring claims against the employer if they (or their household members) contract the virus at work. Employers who are considering return-to-work waivers should consult with counsel to determine if such a waiver will even be enforceable given the circumstances and workers’ compensation laws. Some states impose penalties or other sanctions on employers that try to avoid workers’ compensation claims through waivers. A return-to-work waiver may also have other unintended legal consequences, such as a violation of the Occupational Safety and Health Administration (OHSA) Act’s General Duty Clause. Instead of a waiver, employers can have employees sign an acknowledgement and receipt of the employer’s return-to-work policies and procedures. These written policies should effectively provide employees with the measures the employer has taken to prevent and mitigate the spread of the virus and comply with all applicable laws.

For more information on all laws employers should incorporate into their return-to-work plans, please contact Handler Thayer, LLP.

Lacee J. Wentworth

HANDLER THAYER, LLP

191 N. Wacker Dr.

Suite 2300

Chicago, IL 60606

(312) 641-2100